In the United States Court of Federal 

Claims

OFFICE OF SPECIAL MASTERS

* * * * * * * * * * * * * * * * * * * * * *

DENNIS PICKENS, *

* No. 17-187V

Petitioner, * Special Master Christian J. Moran

*

v. * Filed: September 15, 2021

*

SECRETARY OF HEALTH * Attorneys’ Fees and Costs;

AND HUMAN SERVICES, * reasonable rate for expert

*

Respondent. *

* * * * * * * * * * * * * * * * * * * ** *

Andrew D. Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for Petitioner;

Darryl R. Wishard, United States Dep’t of Justice, Washington, DC, for 

Respondent.

UNPUBLISHED DECISION AWARDING 

ATTORNEYS’ FEES AND COSTS1

On February 19, 2021, petitioner Dennis Pickens moved for final attorneys’ 

fees and costs. He is awarded $40,654.82.

* * *

1 Because this published decision contains a reasoned explanation for the action in this 

case, the undersigned is required to post it on the United States Court of Federal Claims' website 

in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal 

Management and Promotion of Electronic Government Services). This posting means the 

decision will be available to anyone with access to the internet. In accordance with Vaccine Rule 

18(b), the parties have 14 days to identify and move to redact medical or other information, the 

disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the 

undersigned agrees that the identified material fits within this definition, the undersigned will 

redact such material from public access.
2

On February 8, 2017, petitioner filed for compensation under the Nation 

Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10 through 34.

Petitioner alleged that the measles-mumps-rubella vaccination he received on 

February 9, 2015, caused him to suffer subacute inflammatory demyelinating 

polyneuropathy. Petition at 1. A fact hearing on June 11, 2019. On September 20, 

2019, the undersigned issued his findings of fact and conclusions of law.

Thereafter, additional medical records and expert reports were filed by the parties

and the issues of the case were briefed. On January 22, 2021, the undersigned 

issued his decision denying compensation. 2021 WL 615218 (Fed. Cl. Spec. Mstr. 

Jan. 22, 2021).

Concurrently, following the fact hearing petitioner filed a motion for interim 

attorneys’ fees and costs on July 15, 2019, which was granted-in-part on 

September 5, 2019. The interim fees decision awarded most of the amount 

requested by petitioner but made reductions for the following reasons: 1) some of 

the hourly rates requested for counsel were higher than what they had previously 

been awarded in other Vaccine Program cases; 2) clerical tasks were billed and 

travel for counsel was not billed at half of the standard rate; 3) some of petitioner’s 

travel costs were unreasonable; 4) petitioner had included an expert invoice which 

was partially illegible; 5) petitioner had failed to include a receipt for parking.

On September 6, 2019, petitioner filed a motion for reconsideration, which 

was granted-in-part with respect to the parking receipt and denied-in-part with 

respect to the remaining issues, and an updated fees decision was filed on 

September 20, 2019. 2019 WL 5260367 (Fed. Cl. Spec. Mstr. Sep. 20, 2019). 

Petitioner filed a motion for review on October 2, 2019. On January 9, 2020, the 

Court of Federal Claims denied petitioner’s motion for review and judgment was 

entered in accordance with the September 20, 2019 interim fees decision. 2020 WL 

414442 (Fed. Cl. 2020).

On September 19, 2021, petitioner filed a motion for final attorneys’ fees 

and costs (“Fees App.”). Petitioner requests attorneys’ fees of $39,636.50 and 

attorneys’ costs of $5,737.07 for a total request of $45,373.57. Fees App. at 8.

2

Pursuant to General Order No. 9, petitioner warrants that he has not personally 

incurred any costs related to the prosecution of his case. Id. On February 23, 2021, 

respondent filed a response to petitioner’s motion. Respondent argues that 

“[n]either the Vaccine Act nor Vaccine Rule 13 contemplates any role for 

2 As previously noted, petitioner was awarded interim attorneys’ fees and costs in the 

amount of $56,238.28.
3

respondent in the resolution of a request by a petitioner for an award of attorneys’ 

fees and costs.” Response at 1. Respondent adds, however that he “is satisfied the 

statutory requirements for an award of attorneys’ fees and costs are met in this 

case.” Id at 2. Additionally, he recommends “that the Court exercise its

discretion” when determining a reasonable award for attorneys’ fees and costs. Id.

at 3. Petitioner did not file a reply thereafter.

* * *

Although compensation was denied, petitioners who bring their petitions in 

good faith and who have a reasonable basis for their petitions may be awarded 

attorneys’ fees and costs. 42 U.S.C. § 300aa-15(e)(1). In this case, although 

petitioner’s claim was ultimately unsuccessful, the matter required a fact hearing 

and a briefing of the legal issues and the undersigned finds that good faith and 

reasonable basis existed throughout the matter. Respondent also has not 

challenged the reasonable basis of the claim. A final award of reasonable 

attorneys’ fees and costs is therefore proper in this case. See Greenlaw v. United 

States, 554 U.S. 237, 243 (2008) (“[W]e rely on the parties to frame the issues for 

decision and assign to courts the role of neutral arbiter of matters the parties 

present.”). 

The Vaccine Act permits an award of reasonable attorney’s fees and costs. 

§15(e). The Federal Circuit has approved the lodestar approach to determine 

reasonable attorneys’ fees and costs under the Vaccine Act. This is a two-step 

process. Avera v. Sec’y of Health & Human Servs., 515 F.3d 1343, 1348 (Fed. 

Cir. 2008). First, a court determines an “initial estimate ... by ‘multiplying the 

number of hours reasonably expended on the litigation times a reasonable hourly 

rate.’” Id. at 1347-48 (quoting Blum v. Stenson, 465 U.S. 886, 888 (1984)). 

Second, the court may make an upward or downward departure from the initial 

calculation of the fee award based on specific findings. Id. at 1348. Here, because 

the lodestar process yields a reasonable result, no additional adjustments are 

required. Instead, the analysis focuses on the elements of the lodestar formula, a 

reasonable hourly rate and a reasonable number of hours. 

In light of the Secretary’s lack of objection, the undersigned has reviewed 

the fee application for its reasonableness. See McIntosh v. Secʼy of Health & 

Human Servs., 139 Fed. Cl. 238 (2018)
4

A. Reasonable Hourly Rates

Under the Vaccine Act, special masters, in general, should use the forum 

(District of Columbia) rate in the lodestar calculation. Avera, 515 F.3d at 1349. 

There is, however, an exception (the so-called Davis County exception) to this 

general rule when the bulk of the work is done outside the District of Columbia 

and the attorneys’ rates are substantially lower. Id. 1349 (citing Davis Cty. Solid 

Waste Mgmt. and Energy Recovery Special Serv. Dist. v. U.S. Envtl. Prot. 

Agency, 169 F.3d 755, 758 (D.C. Cir. 1999)). In this case, all the attorneys’ work 

during this period was done outside of the District of Columbia. 

Petitioner requests the following hourly rates for the work of his counsel at 

Van Cott & Talamante, PLLC: for Mr. Andrew Downing, $385.00 per hour for all 

work performed from 2019-2020; and for Ms. Courtney Van Cott, $205.00 per 

hour for work performed in 2019, and $275.00 per hour for work performed in 

2020. The undersigned has previously found these rates to be reasonable for the 

work of Mr. Downing and Ms. Van Cott, and they are reasonable for work in the 

instant case as well. Bourche v. Sec’y of Health & Human Servs., No. 15-232V, 

2020 WL 6582180 (Fed. Cl. Spec. Mstr. Oct. 16, 2020).

B. Reasonable Number of Hours 

The second factor in the lodestar formula is a reasonable number of hours. 

Reasonable hours are not excessive, redundant, or otherwise unnecessary. See

Saxton v. Sec’y of Health & Human Servs., 3 F.3d 1517, 1521 (Fed. Cir. 1993). 

The Secretary also did not directly challenge any of the requested hours as 

unreasonable. 

Upon review of the submitted billing records, the undersigned finds most

time billed to be reasonable. The timesheet entries are sufficiently detailed such 

that the undersigned can assess their reasonableness. However, two issues 

necessitate a reduction. First, paralegals duplicated work Ms. Van Cott already 

performed by reviewing routine court orders. Similarly, paralegals charged for 

administrative tasks such as filing documents and reviewing and paying invoices.

These issues have previously been noted concerning Van Cott & Talamante 

paralegals. Second Fees Decision, 2018 WL 7046894, at *3; Sheridan v. Sec’y of

Health & Human Servs., No. 17-669V, 2019 WL 948371, at *2-3 (Fed. Cl. Spec.

Mstr. Jan. 31, 2019); Moran v. Sec’y of Health & Human Servs., No. 16-538V,

2019 WL 1556701, at *4 (Fed. Cl. Spec. Mstr. Jan. 23, 2019). Given these 

previous decisions, Mr. Downing is advised that more significant reductions may 

follow if his firm does not change its billing practice. 
5

The second issue concerns time expended on the motion for review of the 

undersigned’s interim fees decision. The billing records indicate that 5.4 hours 

were expended between Mr. Downing and Ms. Van Cott on the drafting of the 

motion for reconsideration, and an additional 14.3 hours were billed drafting the 

motion for review. Upon review, these two documents are substantially similar, 

particularly in their substantive arguments. 

For example, petitioner’s motion for reconsideration is essentially seven 

pages long. Petitioner’s motion for review is two pages and the accompanying 

memorandum in support is fifteen (excluding caption and signature blocks). Of 

those fifteen pages, the first three are the cover page and table of contents and 

authorities, the next three are substantially similar to the two-page motion 

(although slightly more robust) including a section on the standard of review, and 

the final nine pages are substantially similar (again with some minor additions) to 

the seven pages of the motion for reconsideration, with entire paragraphs copied 

and pasted from the first document to the second. These additions do not, in the 

undersigned’s experience, amount to an additional 14.3 hours of attorney work to 

add to an existing filing.3 A reduction of hours when substantive portions of a 

motion appear copied and pasted from a previous filing is not unreasonable or an 

abuse of discretion. Broekelschen v. Sec’y of Health & Human Servs., 102 Fed. Cl. 

719, 729-730 (2011). 

Upon review, the undersigned finds that a $3,500.00 reduction is reasonable 

to offset the noted issues. Accordingly, petitioner is awarded final attorneys’ fees 

of $36,136.50.

C. Costs Incurred

Like attorneys’ fees, a request for reimbursement of costs must be 

reasonable. Perreira v. Sec’y of Health & Human Servs., 27 Fed. Cl. 29, 34 (Fed. 

Cl. 1992), aff’d, 33 F.3d 1375 (Fed. Cir. 1994). Petitioner requests a total of 

$5,737.07 in costs. Most of this amount is for work performed by Dr. Robert 

Friedman. The remainder is comprised of acquisition of medical records, postage, 

and legal research charges, of which petitioner has provided adequate supporting 

documentation. 

Dr. Friedman has billed a total of 9.75 hours at an hourly rate of $550.00 per 

hour. Petitioner argues this rate is reasonable because Dr. Friedman’s “credentials 

3 For example, paralegals can create a table of citations and a table of authorities. 
6

clearly warrant such a rate, and Dr. Friedman has been compensated at this rate in 

the Program in other cases.” Fees App. at 4. However, the cases cited by petitioner 

as past examples of Dr. Friedman receiving compensation at $550.00 per hour do 

not contain any reasoned analysis of the hourly rate or even mention Dr. Friedman 

by name. Thus, these cases hold little, if any, persuasive value. 

Dr. Friedman’s credentials are set out in his curriculum vitae. Dr. Friedman 

is board certified in neurology, pain medicine, and neuromuscular medicine. 

Exhibit 46. However, Dr. Friedman’s curriculum vitae does not list any academic

positions and he appears to have written only one article published in a peerreviewed journal. Dr. Friedman does not have any specialized knowledge in 

immunology, and this deficit contributed to not accepting opinions regarding the 

theory and the timing espoused in his expert reports as set forth in the decision 

denying compensation. 2021 WL 615281 at *7-8. 

The undersigned has considered the necessary factors in determining a 

reasonable hourly rate for an expert witness in the Vaccine Program. See Abbott v. 

Sec’y of Health & Human Servs., No. 14-907V, 2020 WL 8766524 (Fed. Cl. Spec. 

Mstr. Dec. 4, 2020) (finding a board-certified neurologist with similar credentials 

warranted $400 per hour for work performed in 2015-2018). Based upon the

foregoing and the quality of Dr. Friedman’s work, the undersigned finds it 

reasonable to reimburse his time at $425.00 per hour. A reasonable amount for Dr. 

Friedman’s work is therefore $4,212.20 (inclusive of the medical articles 

purchased by Dr. Friedman). Petitioner is therefore awarded final costs of 

$4,518.32.

D. Conclusion

The Vaccine Act permits an award of reasonable attorney’s fees and costs. 

42 U.S.C. § 300aa-15(e). Accordingly, I award a total of $40,654.82 (representing 

$36,136.50 in attorneys’ fees and $4,518.32 in attorneys’ costs) as a lump sum in 

the form of a check jointly payable to petitioner and his attorney, Mr. Andrew 

Downing.

In the absence of a motion for review filed pursuant to RCFC Appendix B, 

the clerk of the court is directed to enter judgment herewith.4

4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a 

joint notice renouncing their right to seek review. 
7

IT IS SO ORDERED.

s/Christian J. Moran

Christian J. Moran

Special Master